B-144451, DEC. 27, 1960

B-144451: Dec 27, 1960

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AUBEL: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. DIONISIO LUCERO AUTHORIZING YOU TO REPRESENT HIM IN CONNECTION WITH HIS CLAIM FOR PAY AND ALLOWANCES WHICH HE BELIEVES ARE DUE HIM FOR THE PERIOD FROM OCTOBER 4. WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 23. FOR A 4-YEAR TERM OF SERVICE WHICH WAS TO HAVE EXPIRED ON DECEMBER 8. HE WAS RELEASED TO THE CIVIL AUTHORITIES IN THE CITY OF MONTGOMERY. IT APPEARS THAT ALTHOUGH THE INDICTMENT FOR ROBBERY WAS QUASHED ON OR ABOUT NOVEMBER 30. THE CASE WAS HELD OVER FOR THE FEBRUARY 1957 GRAND JURY SO THAT HE MIGHT HAVE AN OPPORTUNITY TO MAKE HIS APPEARANCE AT THAT TIME. LUCERO WAS RELEASED FROM THE CUSTODY OF THE CIVIL AUTHORITIES ON BOND AWAITING TRIAL "WHICH IS TO BE HELD APPROX 15 MAY 57.

B-144451, DEC. 27, 1960

TO MR. LEO J. AUBEL:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1960, ENCLOSING A POWER OF ATTORNEY EXECUTED BY MR. DIONISIO LUCERO AUTHORIZING YOU TO REPRESENT HIM IN CONNECTION WITH HIS CLAIM FOR PAY AND ALLOWANCES WHICH HE BELIEVES ARE DUE HIM FOR THE PERIOD FROM OCTOBER 4, 1956, TO MARCH 4, 1957, INCIDENT TO HIS SERVICE AS AN ENLISTED MAN IN THE UNITED STATES AIR FORCE. YOU REQUEST RECONSIDERATION OF MR. LUCERO'SCLAIM, WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 23, 1959.

THE RECORDS SHOW THAT MR. LUCERO ENTERED ON ACTIVE DUTY ON DECEMBER 9, 1952, FOR A 4-YEAR TERM OF SERVICE WHICH WAS TO HAVE EXPIRED ON DECEMBER 8, 1956. THEY FURTHER SHOW THAT, IN ACCORDANCE WITH A REQUEST MADE UNDER THE PROVISIONS OF ARTICLE 14 OF THE UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C. 814), HE WAS RELEASED TO THE CIVIL AUTHORITIES IN THE CITY OF MONTGOMERY, ALABAMA, ON OCTOBER 4, 1956, FOR TRIAL UPON THE CHARGE OF ROBBERY. IT APPEARS THAT ALTHOUGH THE INDICTMENT FOR ROBBERY WAS QUASHED ON OR ABOUT NOVEMBER 30, 1956, BECAUSE THE VICTIM, A RESIDENT OF THE STATE OF FLORIDA, FAILED TO MAKE AN APPEARANCE, THE CASE WAS HELD OVER FOR THE FEBRUARY 1957 GRAND JURY SO THAT HE MIGHT HAVE AN OPPORTUNITY TO MAKE HIS APPEARANCE AT THAT TIME. ON MARCH 5, 1957, MR. LUCERO WAS RELEASED FROM THE CUSTODY OF THE CIVIL AUTHORITIES ON BOND AWAITING TRIAL "WHICH IS TO BE HELD APPROX 15 MAY 57," AND RETURNED TO DUTY WITH THE AIR FORCE. WAS HELD IN THE SERVICE UNTIL MAY 12, 1957, TO COMPLETE HIS 4-YEAR TERM OF SERVICE. IT IS SHOWN THAT THE CASE AGAINST MR. LUCERO WAS NEVER BROUGHT TO TRIAL, BUT THAT IT WAS NOL-PROSSED BY THE CIVIL AUTHORITIES ON JUNE 3, 1957.

IT APPEARS FROM AN EXAMINATION OF A COPY OF DD FORM 214A (ARMED FORCES OF THE UNITED STATES WORK SHEET FOR REPORT OF TRANSFER OR DISCHARGE) THAT MR. LUCERO'S ACTIVE SERVICE TOTALED EXACTLY 4 YEARS AND THAT HE LOST 155 DAYS (INCLUDING THE PERIOD FROM OCTOBER 4, 1956, TO MARCH 4, 1957) UNDER SECTION 6A, APPENDIX 2B, MANUAL FOR COURTS MARTIAL, 1951. IT IS EVIDENT, THEREFORE, THAT HIS ABSENCE FROM OCTOBER 4, 1956, TO MARCH 4, 1957, WAS NOT CONSIDERED AS EXCUSED. AN EXAMINATION OF MR. LUCERO'S PAY RECORD CARDS, HOWEVER, DISCLOSES THAT, IN ACCORDANCE WITH THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS, HIS PAY ACCOUNT PROPERLY WAS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM OCTOBER 4, 1956, TO DECEMBER 31, 1956.

YOU SAY THAT PARAGRAPH 10351 (DATED JANUARY 1, 1958) OF AIR FORCE MANUAL NO. 173-20 IS APPLICABLE IN THIS CASE AND YOU QUOTE (1) THE PART OF THAT PARAGRAPH IN WHICH IT IS STATED THAT PAY OTHERWISE ACCRUING TO A MEMBER CONFINED BY, OR FOR THE CIVIL AUTHORITIES, MAY BE MADE AFTER THE RESULT OF THE TRIAL IS KNOWN ONLY IF THE ABSENCE FROM DUTY IS EXCUSED BY THE COMMANDER AS UNAVOIDABLE AND (2) THE PART OF THAT PARAGRAPH WHICH INCLUDES "WHERE THE CASE HAS BEEN NOL ROSSED" IN THE LIST OF CIRCUMSTANCES WHICH CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE. YOU URGE THAT MR. LUCERO IS ENTITLED TO PAY ON SUCH BASIS. YOU INDICATE, HOWEVER, THAT THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS HAS CONSIDERED MR. LUCERO'S CASE AND THAT IT HAS BASED ITS REJECTION OF HIS CLAIM ON THAT PART OF PARAGRAPH 10351 WHICH PROVIDES THAT, EVEN THOUGH THE MEMBER IS RELEASED WITHOUT TRIAL, THERE IS NOT SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE IF IT IS CLEARLY ESTABLISHED THAT HIS ARREST AND DETENTION WERE CAUSED BY HIS OWN MISCONDUCT.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (B), PROVIDES, IN PERTINENT PART, THAT---

"* * * WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS AVOIDABLE.'

IN OUR DECISION OF AUGUST 28, 1956, B-128493, 36 COMP. GEN. 173, WE HELD THAT A MEMBER OF THE ARMED FORCES WHO IS NOT ON AUTHORIZED LEAVE AND WHOSE CONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY, MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED ABSENCE IS FORFEITED, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS, UNLESS HIS ABSENCE FROM DUTY IS EXCUSED AS UNAVOIDABLE.

THE QUESTION OF WHETHER SUFFICIENT GROUNDS EXIST FOR EXCUSING ABSENCES OF MEMBERS OF THE ARMED FORCES AS UNAVOIDABLE UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (B), IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION BASED ON THE INDIVIDUAL FACTS. AS WAS STATED IN OUR DECISION OF MAY 18, 1960, B-141833, 39 COMP. GEN. 781, HOWEVER, IT IS OUR VIEW THAT THE BASIS FOR EXCUSING SUCH ABSENCES SHOULD BE AN ABSENCE OF MISCONDUCT RATHER THAN A LACK OF CRIMINAL CULPABILITY. IT APPEARS THAT THE DEPARTMENT OF THE AIR FORCE HAS DETERMINED THAT MR. LUCERO'S ABSENCE IN THE HANDS OF THE CIVIL AUTHORITIES WAS CAUSED BY HIS OWN MISCONDUCT AND WE FIND NO REASON FOR DIFFERING WITH THAT DETERMINATION. FURTHERMORE, ALTHOUGH IT IS INDICATED IN PARAGRAPH 10351 OF AIR FORCE MANUAL NO. 173-20 THAT THE FACT THAT THE CIVIL CASE HAS BEEN NOL-PROSSED MAY CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE, WE FIND NOTHING IN THOSE REGULATIONS WHICH WOULD REQUIRE THAT THE ABSENCE BE EXCUSED AS UNAVOIDABLE ON THAT BASIS WHEN IT IS ADMINISTRATIVELY DETERMINED THAT THE ABSENCE WAS CAUSED BY THE MEMBER'S OWN MISCONDUCT.

ACCORDINGLY, OUR SETTLEMENT OF JUNE 23, 1959, DISALLOWING MR. LUCERO'S CLAIM, IS SUSTAINED.